A jury question was presented. As appellant asked for a directed verdict and a judgment non obstante veredicto, the testimony must be considered in the light most favorable to appellee. It shows that just before the accident, one passenger looked at the speedometer and told defendant's decedent that the car was going 100 miles an hour, while another passenger stated it was only traveling 95 miles per hour. Defendant's decedent thereupon stated that the car was only capable of 90 miles an hour. Notwithstanding *Page 211 the latter opinion, the car may have been driven under extreme strain. After the accident, the hand on the speedometer, which had stopped, pointed at 92 miles an hour, but this again is not conclusive. There is no evidence whatsoever in the case that the car was going at a rate as low as 85 miles an hour as appears in appellant's statement of questions involved. The record shows that at the time of the accident, the driver was negotiating a slight curve in the road, but that it had been continuous for a distance of over 600 feet to the point where the car went off the road. There is some proof that he had a few drinks before leaving his club and that the hour was close towards midnight.
We have consistently held that excessive speed alone does not constitute wilful and wanton misconduct, but the circumstances in each case must be considered. It is true that today cars are frequently driven at the rate of from 75 to 80 miles an hour and ordinarily, unless there are special circumstances, such rate would not be so excessive as to constitute wilful and wanton misconduct. We do hold, however, that when at nighttime, around a slightly curved road, a driver drives his car at a rate varying from 95 to 100 miles an hour, a speed which may be termed "racetrack speed" such as is commonly used on speedways, and an accident occurs, it at least becomes a question for the jury to determine whether there was not such a degree of recklessness as to constitute wilful and wanton misconduct. The judge properly left the question to the jury.
Appellant further claims that an action for wrongful death under Act No. 38, Pub. Acts 1848 (3 Comp. Laws 1929, § 14061), abated upon the death of the tortfeasor. The precise question has *Page 212 never been presented to this court. In Re Sullivan's Estate,165 Mich. 585, it was apparently assumed that the estate of a deceased tortfeasor was liable for a claim involving personal injury.
Section 14061, 3 Comp. Laws 1929, provides as follows:
"Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony."
The question arises: Who is the person who would have been liable under the wording of this statute had plaintiff's decedent not died? We are not unmindful of the difficulties that have arisen in other jurisdictions relative to the question of whether an action abates upon the death of the tortfeasor.
The various wrongful death acts commencing with Lord Campbell's Act in 1846 (9 and 10 Victoria, chap. 93) were enacted to cover this class of personal injury cases not recognized by the common law. The wrongful death act, 3 Comp. Laws 1929, § 14061, makes the "person who * * * would have been liable, if death had not ensued, liable to an action for damages." Under our probate practice, 3 Comp. Laws 1929, § 15685:
"The commissioners shall have power to try and decide upon all claims which by law survive against or in favor of executors and administrators." *Page 213
It seems wholly illogical and not in accordance with any theory of common sense to believe that the legislature intended to confine the word "person," as used in the wrongful death act, to the tortfeasor himself and exclude the estate of a deceased tortfeasor. The statute did not use the word "tortfeasor." While statutes in derogation of the common law should be strictly construed, they must nevertheless be reasonably construed. We believe the word "Person" was intended to include both the tortfeasor and his estate. Some States have deemed it necessary to define the word "person" by express statutory enactment so as to include such person's estate.
In Harris v. Nashville Trust Co., 128 Tenn. 573, 581, 582 (162 S.W. 584, 49 L.R.A. [N. S.] 897, Ann. Cas. 1914 C, 885), the court said:
"The maxim, 'actio personalis moritur cum persona,' is by no means a favorite with the courts. It has no champion at this date, nor has any judge or law writer risen to defend it for two hundred years past. * * * It is sufficient to say that no reason has ever been assigned for the existence of this rule which would satisfy an enlightened court of modern times."
In 1931, the Supreme Court of Nebraska, in Re Grainger'sEstate, 121 Neb. 338 (237 N.W. 153, 78 A.L.R. 597), held that when a defendant tortfeasor died, his estate was liable notwithstanding the common law maxim mentioned above.
While it is true that the wrongful death act is distinct from the survival statute, on the score of the amount of damages recoverable and the question of instantaneousness of death, the former nevertheless should be read in conjunction with the latter. The same question arose in Devine v. Healy, *Page 214 241 Ill. 34 (89 N.E. 251, 61 A.L.R. 837), where it was held that the wrongful death act must be construed in the light of the survival statute and the conclusion was there reached that the legal representative of the deceased wrongdoer is within the language of the wrongful death act referred to, as the "person who * * * would have been liable, if death had not ensued."
It will be found in section 14040, that there is no reference whatsoever to the liability of the estate in the event of the tortfeasor's death, yet in Ford v. Maney's Estate, 251 Mich. 461,464 (70 A.L.R. 1315), we held as follows:
"A cause of action for negligent injuries, which accrues in the lifetime of a party, whether person injured or tortfeasor, survives his death. Rogers v. Windoes, 48 Mich. 628; Norris v.Kent Circuit Judge, 100 Mich. 256; Love v. Railroad Co.,170 Mich. 1.
" 'When the law declares that a cause of action shall survive, it is equivalent to saying an executor may sue upon it.' Rogers v. Windoes, supra.
"It is also equivalent to saying that the estate of the deceased tortfeasor may be sued upon it."
Ford v. Maney's Estate, supra, is clear authority for the holding that the tortfeasor's estate would have been liable to plaintiff's decedent, had death not ensued, and, as such, would be a "person" liable to an action for damages under the wrongful death act.
While we are fully cognizant of the rulings of other States absolving a tortfeasor from liability in the event of his death in the absence of statutory provisions making the estate liable, under the wording of our statute and for the reasons above stated, *Page 215 we find that the liability extends to the estate of the tortfeasor.
The judgment of the lower court should be affirmed, with costs to appellee.
BUSHNELL, J., did not sit.